Sivixay v. Danaher Tool Group

359 S.W.3d 433, 2009 Ark. App. 786, 2009 Ark. App. LEXIS 944
CourtCourt of Appeals of Arkansas
DecidedNovember 18, 2009
DocketNo. CA 09-420
StatusPublished
Cited by9 cases

This text of 359 S.W.3d 433 (Sivixay v. Danaher Tool Group) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sivixay v. Danaher Tool Group, 359 S.W.3d 433, 2009 Ark. App. 786, 2009 Ark. App. LEXIS 944 (Ark. Ct. App. 2009).

Opinions

COURTNEY HUDSON HENRY, Judge.

liAppellant Intong Sivixay appeals the decision of the Arkansas Workers’ Compensation Commission denying his claim for wage-loss benefits. For reversal, he contends that the Commission’s findings are not supported by substantial evidence. We agree and reverse and remand for proceedings consistent with this opinion.

The record reflects that appellant, age forty-seven, began his employment with appellee Danaher Tool Group in 1989. In September 2002, he worked in the forge department, as he had done for the past five or six years. Appellant’s duties required him to use a ten-pound prong to lift a fifteen-pound, super-heated piece of steel from a heater onto a hammer machine. After the hammering process, appellant placed the steel into a trimmer. Appellant transferred six to seven hundred pieces of steel in this fashion every day.

[¡On September 14, 2002, appellant sustained a work-related injury when a piece of hot metal penetrated his abdomen. According to the medical reports, the incident involved a missile-type injury and a thermal injury as well. As a result, appellant underwent four surgeries, including the resection of eighty percent of his stomach, the resection of the left one-half of his liver, the resection of a significant length of his transverse colon, and the resection of multiple feet of the small intestine. Appellant also underwent a procedure to reverse his colostomy.

Appellant returned to work with a colostomy at light duty in the assembly department in January 2003. At first, appellant worked only two hours a day, but he gradually increased his workload to an eight-hour day. Appellant has continued under the care of a doctor for the treatment of chronic digestive difficulties, and in November 2004, appellant saw Dr. Gary Mof-fitt for an independent medical examination. In his report, Dr. Moffitt stated that appellant had reached maximum medical improvement, and the doctor assigned a permanent anatomical impairment rating of thirty-five percent.

Following Dr. Moffitt’s report, appellant submitted a claim seeking additional temporary total or temporary partial disability benefits. He also claimed entitlement to wage-loss benefits in addition to the anatomical impairment rating assessed by Dr. Moffitt. Appellee accepted and paid the thirty-five percent impairment rating but controverted appellant’s claim for wage-loss and further temporary disability benefits.

[¡At the hearing before the administrative law judge in September 2008, appellant testified that he weighed 110 pounds in September 2002 but that his weight had fluctuated since the accident. He said that he currently weighed somewhere between 90 and 100 pounds. Appellant said that the injury has affected his eating habits. He stated that he cannot eat much at one time and that he vomits and has trouble digesting his food. He takes medication to alleviate his digestive problems. Appellant said that he had not regained his strength following the injury and that he grows tired after physical exertion.

Appellant further testified that he earned $12.86 per hour in his present job as a machine operator and that he was earning more than $17 an hour when he worked in the forge department. He agreed that appellee had offered him a position in the forge department. Appellant said that he declined that job because he was not physically capable of performing the required duties, which he described as being physically demanding. He testified that he experiences pain, becomes dizzy, and has headaches after lifting heavy objects. Appellant stated that he also could not do yard work or other activities of that nature at home and that he relied on his wife to do those chores.

Kay Henson, appellant’s supervisor, testified that she offered appellant his former position in the forge department in 2005 when appellant was released to full duty. She said that appellant did not accept this job and that she was not aware of appellant being placed under any restrictions. Henson also testified that employees receive higher wages in the forge |4department due to the skill level required and because “[fit’s hot, it’s hard, [and] very physical.”

The law judge also received into evidence the report authored by Dr. Moffitt. Dr. Moffitt indicated that appellant suffered a significant amount of permanent impairment in assigning the thirty-five percent permanent impairment rating associated with the injuries to appellant’s abdomen and digestive system. He stated that appellant suffered from “dumping syndrome” and had problems maintaining nutrition. Dr. Moffitt also observed that appellant weighed ten to twenty percent below his desired weight and that appellant had symptoms of organic upper digestive tract disease. Dr. Moffitt observed that appellant’s “physical activity is limited somewhat due to his weakness in association with his disorder,” and the doctor noted appellant’s need to take frequent breaks from work to eat.

The law judge denied appellant’s claim for additional temporary benefits but found that appellant had suffered a loss in wage-earning capacity.in the amount of twenty-five percent. Appellee pursued an appeal to the Commission to protest the award of wage-loss benefits. The Commission reversed the law judge’s decision, finding that appellant was ineligible for wage-loss benefits because appellant refused a bona fide and reasonably obtainable offer of employment at the same wages he was earning at the time of the accident.

Appellant argues on appeal that substantial evidence does not support the Commission’s decision. He contends that the evidence shows that he is not physically capable of returning to his job in the forge department. Appellant asserts that his lack of capacity is |fisupported by Dr. Moffitt’s report that his physical activities are limited as a result of weakness associated with his condition.

The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark.App. 228, 201 S.W.3d 449 (2005). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Id. Motivation, post-injury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss disability benefits in excess of permanent physical impairment. Henson v. Gen. Elec., 99 Ark.App. 129, 257 S.W.3d 908 (2007). A claimant’s lack of interest in pursuing employment with his employer and negative attitude in looking for work are impediments to the full assessment of wage loss. Logan County v. McDonald, 90 Ark.App. 409, 206 S.W.3d 258 (2005).

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Bluebook (online)
359 S.W.3d 433, 2009 Ark. App. 786, 2009 Ark. App. LEXIS 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sivixay-v-danaher-tool-group-arkctapp-2009.